The Death Penalty in California: Bogged down by legal maneuvering and judicial fine tuning

What do murderers think? Is it like cold peanut butter?

Richard Krupp, Ph.D.

According to a recent Los Angeles Times article, with 717 condemned inmates on California’s death row, the legal tug of war over capital punishment in expected to intensify, especially with incoming Governor Jerry Brown and Attorney general Kamala Harris known to oppose executions on moral grounds. Both, however, have said they will uphold death sentences in their new jobs.

According to World Lingo, the first execution at San Quentin was Jose Gabriel on March 3, 1893 for murder. The first hanging at Folsom was Han Chin also for murder on December 13, 1895. A total of 215 inmates were hanged at San Quentin and 92 were hanged at Folsom. The first people to die in the San Quentin gas chamber were Albert Kessell and Robert Cannon on December 2, 1938. They were involved in a failed escape attempt at Folsom State prison in which the warden was killed. Three more people had their death sentences carried out within two weeks. Up until 1967, 194 people were executed by lethal gas, including four women. The last person was Aaron Mitchell on April 12, 1967.

The California Supreme Court ruled in People v. Anderson that the current death penalty laws were unconstitutional and oversaw the commutation of 107 death sentences in the state in 1972. In a 1976 decision, the California Supreme Court again held the death penalty statute was unconstitutional as it did not allow the defendant to enter mitigating evidence. An additional 70 inmates had their sentences commuted. The latest change of method came in January 1993, when the lethal injection was given as a choice for people sentenced to death. David Mason chose to die in the gas chamber, because he wanted to suffer for his crimes. In 1994 lethal injection became the default method. The first person executed under these new laws was William Bonin in 1996. 13 people have been executed since California reinstated the death penalty in 1977, but 56 others have died on death row of other causes, including 14 of suicide (through 10/25/2007).

In February 2006, a de factomoratorium on capital punishment was enforced in California as the state was unable to obtain the services of a licensed medical professional to carry out the execution of Michael Morales. An injunction made by the 9th Circuit Court of Appeals held that an execution could only be carried out by a medical technician legally authorized to administer IV medications. The lethal injection procedure, if wrongfully performed, could lead to suffering for the condemned, potentially constituting cruel and unusual punishment.

A review of a log book maintained at Folsom State prior to moving the operation to San Quentin reveals that the time between death sentences imposed by the courts and execution was relatively short; sometimes less than one year. Due to various court decisions the time spent on death row awaiting execution has been growing significantly. The US Bureau of justice released a report in December 2010, Capital Punishment, 2009—Statistical Tables.

Average number of months between sentencing and execution increased by 30 to 169 months from 2008 to 2009.

From 1973 to 2009, 73 inmates in California prison died while on death row awaiting execution, while 13 were executed during that time period.

According to the Sacramento Bee article on January 1, 2011, The Conversation: Can California confront costs of the death Penalty? :

Up until the 1970s, California executed about a dozen murderers each year, with an average wait of three years between sentencing and execution. The average delay in the U.S. is now 12 years. In California, it is 24 years.

The biggest reason for the delay in California is that the demand for competent, experienced death penalty lawyers vastly exceeds the available supply. The size of the available supply is directly related to the economics of practicing law in a state like California. More than 40 percent of the 713 inmates on California’sdeath row are still waiting for the appointment of a lawyer to handle the habeas corpus reviews to which they are constitutionally entitled.

Most of the $54.4 million we spend each year for capital appeals and habeas reviews comes out of the state budget.

The most recent polls show 70 percent of voters support the death penalty.

There is little reliable research available regarding the death penalty that is not the subject of heated debate. Some feel it is cruel and unusual punishment. In Louisiana in 1946 Willie Francis was executed in the electric chair. There were voltage problems and he survived. Afterwards Francis stated the experience “tasted like cold peanut butter.” He was later successfully executed. It is difficult to determine what the impact of the possibility of the death penalty is on individual criminals. Did people convicted of murder consider the possibility of imposition of the death penalty prior to committing murder? A study in 1983 included interviews with more than 325 men convicted of murder in California who were sentenced to prison for life terms. Here are some of the highlights:

28% had served a prior prison term.

43% of the victims were strangers to the murderers.

77% of the murderers were appealing conviction.

56% said they were guilty.

47% of the murderers felt implementation of the death penalty would be an effective deterrent, 45% did not, 9% didn’t have an opinion.

Having a long time pass between the crime and the punishment weakens the impact for both the victim’s family and the murderer. A grisly murder captures the headlines, followed by news stories then before you know it ten years have passed and the murderer exists on death row, sometimes entertaining a group of fans through the internet. The entire legal system suffers. Legal costs mount and the taxpayers are forced to devote large sums of money that could better be spent elsewhere. In addition, appeals that go on for years are hindered by changing law enforcement techniques, public/media interest, and the memories of people involved in investigations. Having been peripherally involved the Kevin Cooper case in 1983 I understand some of these problems.

It would be very helpful if the length of time between the imposition of the death sentence and the execution were at least reduced to the 1984 national rates. Any death penalty reform efforts should be directed toward shortening the time between a death sentence and an execution.

Under California law death penalty cases have a MANDATORY appeal. The bad guy can’t waive it. There are very few death penalty appeals lawyers and the gig doesn’t pay that great (as far as lawyers go). The people who do the work tend to be true believers and fight them tooth and nail, every inch of the way. That is why it takes YEARS and costs huge amounts of money to actually skrag one those guys.

Ha ha, you’ve got a helluva lot more pukes on your death row than we have in big bad Texas where we’ve been topping them off regularly.

I can’t understand why CDCR was looking so frantically for some sodium thiopental recently. Why bother? You’re not going to execute anyone anyway.

Our guv, unlike Moonbeam, has no problem whatsoever signing those death warrants. And he told CDCR to take a flying leap when it tried to ‘cajole’ him into sharing our supply of sodium thiopental with you.

Justice delayed is justice denied, in all directions. Back when, when the Brits had a functional death penalty, the time limit was 6 months. You could appeal to the Queen, the Home Secretary, your mother, whoever. It was all cool, but……. Six months after imposition of sentence you got the drop. They had substantial anecdotal evidence indicating that, within their criminal classe, criminals AVOIDED carrying loaded guns and situations with a high degree of probability of turning bad just because they had an EFFECTIVE death penalty.

Sunday, August 2nd 2015

Author Spotlight

Richard Krupp

Richard C. Krupp, Ph.D. retired as the Assistant Secretary, Audits & Compliance Division, CDCR. A public servant dedicated to responsible government, Krupp's whistleblower activity led to systemic changes within the agency and his eventual elevation to the executive level.